Director of Public Prosecutions v Anderson
[2019] VCC 1131
•05 July 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-19-00381
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROWAN ANDERSON |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 04 July 2019 | |
DATE OF SENTENCE: | 05 July 2019 | |
CASE MAY BE CITED AS: | DPP v Anderson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1131 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: sentence – aggravated carjacking – mandatory imprisonment – special reasons not to impose 3 year non-parole period – highly vulnerable offender – per-existing neurodevelopmental disorder – pre-existing Post Traumatic Stress Disorder – acquired brain injury following suicide attempt between charge and sentence – injustice of imposing mandatory term of imprisonment
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M. Roper | Office of Public Prosecutions |
| For the Accused | Mr C. Carr | Pica Criminal Lawyers |
HER HONOUR:
1 Rowan Anderson, you have pleaded guilty to one charge of aggravated carjack and two charges of obtaining property by deception.
2 You were 22 years of age at the time and you were living at home with your mother in Frankston. You have lived with her all your life. On the evening of 30 November last year you went out and purchased some ecstasy, which you took. That left you with a desire to obtain more drugs. You went home, took a kitchen knife, wrapped it up in a tea towel, placed it in your shorts and went for a walk.
3 Not far from where you lived, a man by the name of Chan Dong was parked outside the house that he had just purchased in Skye Road in Frankston. He was sitting in his car with the engine running. You approached the car and knocked on the passenger side window. Mr Dong opened the car door and you got in, produced the knife, pointed it towards him and said, 'Get out of the car. Get out of the car'. Not surprisingly he did so. His wallet was left in the car. You then climbed over the centre console into the car and drove away. That gives rise to Charge 1, aggravated carjacking. Mr Dong was still in possession of his phone. He took photos of his car as it disappeared but was unable to take any photos that identified the driver.
4 You drove to the Edithvale post office where you used one of the credit cards from Mr Dong's wallet to purchase two packets of cigarettes. It is that, the purchase of the cigarettes using Mr Dong's credit card, which gives rise to Charge 2, the first of the two charges of obtain property by deception. You then dumped the knife and Mr Dong's identification from his wallet, drove to the Edithvale railway station and caught a train to the city. You tried to buy some clothing using other credit cards from Mr Dong's wallet but he had cancelled the cards and you were unable to use them.
5 You went to the Clique bar in King Street, because you were apparently aware that it was a bar that was open in the early hours of the morning. You kept trying different cards of Mr Dong's. You managed to obtain about $100 worth of alcohol before all cards were declined. You eventually caught the train back to Edithvale, picked up the car again, dumped it near you home and went home.
6 During the day, later that day, you continued to think about what you had done, sought advice, confessed to people and ultimately by 9 o’clock that evening, took yourself to the Frankston police station, carrying with you a bag containing the clothing that you had worn during the commission of the offences and the keys to the car that you had stolen. You handed yourself in to the police and told them what you had done.
7 For reasons that will become apparent, the police saw fit, and rightly so, to arrange for the presence of an independent third person during the interview. You gave a full and frank account of your actions and provided what is, in effect, the bulk of the evidence against you and the only evidence that would have led to your being charged and convicted. It is of particular note that there was no forensic or other evidence which might have led to your identification as the perpetrator of these offences. And as I have already noted, the photographs that Mr Dong was able to take as his car disappeared did not provide any clue as to the identity of the offender.
8
You were charged and spent two days in custody before being released on CISP bail, that is supported therapeutic bail. By the first filing hearing of this matter, on 4 December 2018, you had made it very clear that you intended to plead guilty to the charges and at the committal case conference on
26 February this year, you were committed for a plea hearing to this court on the charges of aggravated carjack and the two charges of obtaining property by deception on a straight hand-up brief.
9 Aggravated carjacking is an offence which parliament has determined must be punished by a term of imprisonment. Unless special reason exists, that mandatory prison sentence must have a non-parole period fixed of at least 3 years. Section 10A(2) of the Sentencing Act specifies the circumstances in which it is open to a court to find that a special reason exists.
10 I am satisfied that, in your circumstances, at least three of the statutorily defined special reasons exist. The first is, as contemplated by s 10A(2)(a), that you have assisted law enforcement authorities in the investigation and prosecution of an offence, that is, your own offending, the offending for which you now come to be sentenced. The second and third, as contemplated by s 10A(2)(c)(ii) are that you have impaired mental functioning, as that term is defined in s 10A(1) of the Sentencing Act, which would result in your being subject to a substantially and materially greater burden or risk of imprisonment than the ordinary burden or risk of imprisonment. In your case, your impaired mental functioning exposes you to both substantially and materially greater burden and risk.
11 Any of those three special reasons alone is sufficient to justify or permit departure from that otherwise mandated outcome of a minimum 3 year non-parole period. In your case, the combination of your assistance, the substantially and materially greater burden of imprisonment and the substantially and materially greater risk of imprisonment point powerfully to a sentence well outside the range which would normally be expected to result from the commission of the offence of aggravated carjack.
12 Although parliament has allowed for dispensing with the 3 year minimum non-parole period if special reason exists, it does not permit the imposition of a non-custodial sentence. It is only the non-parole period that can be departed from if special reason exists. So, I am compelled, by parliament, to impose a custodial sentence for the offence of aggravated carjack. Were it not for that statutory mandate, I would not have considered, in applying the general principles that otherwise govern sentencing in this court, that a custodial sentence was warranted in the circumstances. Indeed, to impose a term of imprisonment on you for this offence, notwithstanding its seriousness, is a manifest injustice.
13 You are now 23 and you were 22 at the time of the offending.
14 This is your first and only contact with the criminal justice system.
15 You have been brought up by a loving mother who has done her best to support and protect you in the face of hardship and disadvantage. But love alone cannot overcome the disadvantages that you suffer from.
16 Professor Andrew Carroll conducted a thorough assessment of you. In addition to interviewing you and your mother and reviewing the hand up brief, he had access to historic reports and assessments and a wealth of contemporaneous material. I will refer to his findings before dealing with your circumstances more generally.
17 The historic material provided to Professor Carroll included speech, language and psychological assessments, which had been conducted on you at various times between 2001 and 2010, that is, during your childhood and adolescence. The post offending reports included a current neuropsychological assessment, a discharge summary following your emergency inpatient psychiatric admission in early January this year, as a result of a serious near fatal attempt to take your life, a report from the treating psychiatrist and alcohol and other drug counsellor you have been seeing since then and a report from your counsellor at South East CASA. Also provided to Dr Carroll was an assessment and progress report in relation to the CISP bail that you were released on after you were charged. Testimonials from family members were also provided to him and to me. They provided personal accounts of your history and circumstances which were entirely consistent with the history recounted in the assessments and the reports. The post offence reports and the testimonials from family members also gave a consistent account of your deteriorating mental health and the triggers for it in the period leading up to the offending. Professor Carroll provided a comprehensive report and he gave supplementary oral evidence at the plea hearing. I have been vitally assisted by that.
18 His unchallenged conclusions, based on this wealth of material are that you are now significantly affected by three distinct mental disorders:
a) an acquired brain injury (ABI);
b) a neurodevelopmental disorder similar to but not entirely on all fours with autism spectrum disorder which is called Social (Pragmatic) Communication disorder; and
c) Post-traumatic Stress Disorder.
19 Each of these three disorders has a distinct and separate origin. The ABI, which on the neurological and neuropsychological testing results shows there has been a significant impact on your memory function, postdates the offending. Professor Carroll and Dr Jackson, the neuropsychologist who assessed you, agree that the acquired brain injury and the problems with mental functioning you suffer as a result appear to be largely secondary to cerebral hypoxia suffered by you in that near fatal attempt to end your life in January this year.
20 The communication disorder is what Professor Carroll describes as a serious, lifelong neurodevelopmental disorder. I accept his evidence that it profoundly affects your capacity to navigate your social world. It is evidenced by persistent difficulties in the social use of verbal and non-verbal communication. It has had significant impact on your ability to participate in social, academic and occupational contexts throughout your life. This disorder has been apparent since early childhood and is evidenced not only by your mother’s account but also the various formal assessments completed in early to mid-childhood.
21 The Post-Traumatic Stress Disorder stems from a traumatic event which occurred when you were 18 and was the culmination of your father’s abusive conduct to you since your childhood. The Post Traumatic Stress Disorder is of moderate severity. Again, there is contemporaneous evidence to support the history recounted by you. Your father was absent from your life until you were five. Contact after that fluctuated. He is, again, on historic and contemporaneous reports as well as current ones, a person with his own history of substance abuse and you were exposed, not only to that, but to his violence towards his mother and yourself. He introduced you to drugs and alcohol in your early teens. The evidence reveals a marked escalation by you in substance use, a significant worsening of anxiety symptoms, intrusive and disturbing memories following the traumatic event which occurred at his hands when you were 18, hyperarousal including insomnia, altered thinking including reduced emotional connections with your mother and avoidance of sexual activity postdating that traumatic event. Professor Carroll reports that you are acutely unwell with symptoms of Post-Traumatic Stress Disorder.
22 I am satisfied that you fall within the special reasons which justify departure from the requirement to impose a 3 year minimum term set out in s 10A(2)(c)(ii) as I have said. Specifically, I am satisfied on the balance of probabilities that you have impaired mental functioning that would result in your being subject to substantially and materially greater than the ordinary burden and risk of imprisonment. Again, I note that it is necessary for only one of those to be made out for special reason to be made out. But in your case, both of those circumstances identified in s 10A(2)(c)(ii) are made out.
23 In his report Professor Carroll concluded:
Mr Anderson suffers from 3 distinct psychiatric conditions, any one of which would have a significant impact on day-to-day functioning. The combination of the 3 in his case is unusual and means that he is now significantly and psychiatrically disabled and exquisitely vulnerable if he is placed into the alien and threatening environment of prison.
24 In dealing with the combination of these 3 distinct mental disorders, Professor Carol said:
Particularly when dealing with interpersonal stressors, it is likely that these 3 conditions have a synergistic effect, and that the combined effect of the 3 conditions on his day-to-day functioning is very significant. For example, the persistent anxiety and hypervigilance secondary to his PTSD makes it even more difficult for him to navigate social situations and thus further compounds his lifelong difficulties navigating social situations due to the social (pragmatic) communication disorder. Similarly, his memory deficits from his acquired brain injury will further compound his anxiety and his already fragile abilities to navigate the social world.
25 In dealing with the burden of imprisonment, Professor Carroll said:
[Mr Anderson] is exquisitely vulnerable to abuse by male peers because of his social pragmatic communication disorder. This appears to have been a lifelong problem for him. His profound social naivete, which is part of his communication disorder, would make it very difficult indeed for him to navigate the inevitable interpersonal challenges of residents within prison. He would therefore be very vulnerable within the context of prison, where he would inevitably encounter large numbers of males, many of whom would be antisocial in attitude.
26 Your vulnerability to abuse by male peers is compounded by your recent history of bullying in the workplace (itself occurring at the hands of male peers) and by the abuse including the serious traumatic event at age 18 to which I have already referred.
27 Professor Carroll was also of the view that your still active Post-Traumatic Stress Disorder would likely be greatly worsened by placement within a prison, where you would likely be triggered into a state of perpetual hypervigilance, fearing sexual assault by a male. He also is of the view that the memory deficits resulting from your ABI would add to this, making it difficult for you to reliably cope with prison routines.
28 The combined effect of the memory problems, the social communication disorder and the PTSD-related anxiety lead Professor Carroll to express grave concerns about a profound deterioration in your mental state in prison. It is his view that that would be so even if you were in a protection prison environment. He noted, and of course, given his qualifications and experience he is well placed to know this, that prison-based mental health care would not include evidence-based treatment for your PTSD. It would only involve as-required mental health nursing at times of high risk of suicide and medication reviews by a psychiatrist. He noted that there was no prospect of a transfer to Thomas Embling given the limited beds available there, and that in the likely event that you developed suicidal ideation within prison, that it would be managed by placing you in restrictive conditions such as isolation. In your circumstances that in itself, he states, would be counter therapeutic.
29 I accept his opinion and I am satisfied based on his opinion that the burden of imprisonment is substantially and materially greater than the ordinary burden of imprisonment.
30 Dealing then with the second limb of the special reasons in s 10A(2)(c)(ii), the risks of imprisonment, relevantly Professor Carroll said:
His impaired mental functioning secondary to his 3 different conditions would place him at substantially and materially greater than the ordinary risk of imprisonment. Specifically I would be concerned about the high risk of:
Being vulnerable to bullying and exploitation;
A severe deterioration in his anxiety symptoms as a result of his PTSD-related anxiety being inevitably worsened in the context of imprisonment;
The high likelihood of a recurrence of suicidal thinking, placing him at high risk of completed suicide;
The inevitable severing of contact with his current treatment services in the community and the fact that these would be unlikely to be replaced by existing equivalent supports in the present context; and
Separation from his mother, who appears to be his only source of meaningful, reliable, emotional and practical support.
31 Again, I accept Professor Carroll’s opinion and I am satisfied based on it that the risk of imprisonment is substantially and materially greater than the ordinary risk.
32 I am also satisfied that you fall within the special reasons set out in s 10A(2)(a) which, again, on its own, justifies departure from the requirement to impose a 3 year minimum term. I am satisfied that you have assisted law enforcement authorities in the investigation and prosecution of an offence. As the summary provided on your plea and which I have already recited makes clear, it was later on the same day of the carjacking that you walked into the police station to surrender yourself. You carried with you the bag containing the clothing you had worn at the time of the commission of the offence. You made full and complete admissions when you were interviewed. It is noteworthy that the police arranged for the presence of an independent third person, a recognition of your communication disorder and perhaps also of your Post-Traumatic Stress Disorder symptoms. As Mr Roper for the prosecution properly acknowledged, there was no eyewitness, circumstantial or forensic evidence which linked you to the offending and but for your decision to surrender yourself and confess, there was no realistic prospect that you would have been identified charged or convicted.
33 It follows therefore that each one of these three factors constitutes of itself special reason. Each one on its own is sufficient to remove you from that otherwise mandated minimum term.
34 The combination of all three, and the evidence supporting the finding of those three special reasons, point compellingly to imposing a sentence of much less severity than a term of imprisonment sufficient in length to permit the fixing of a non-parole period of at least 3 years.
35 However, I accept, as I must, that Parliament has decreed that a sentence of imprisonment must still be imposed in respect of Charge 1, notwithstanding the existence of those special reasons and circumstances as pitiable as yours. Dealing as best I can with the constraint that that places on general sentencing principles and the exercise of what is left of my sentencing discretion, I turn now to the other factors relevant to the sentence.
36 First and obviously, just punishment, deterrence, denunciation and consideration of the impact of your offending on the victim must all carry proper weight in the sentencing process. Your circumstances are not the only matters that must and should be taken into account.
37 Dealing then with the matters that are personal to you, I note first that the offending behaviour itself occurred against the context of worsening mental health in the months before the offence.
38 Despite the severity of your neurodevelopmental disorder, the abuse that you suffered at the hands of your father, culminating in the traumatic event when you were 18 and which led to the development of the Post-Traumatic Stress Disorder and the symptoms I have recounted, you had managed to obtain and hold down a plumbing apprenticeship for 18 months in the period leading up to this offending. You were seriously bullied at work, both verbally and physically and had, shortly before the offending, found yourself unable to return to work as a result. I note that your WorkCover claim in respect of the bullying has been accepted, again there is independent corroborative support for what you have said. Your family reported that, in the months leading up to the offending, you were deeply distressed and crying. You felt that life was hard and unfair. You said to your aunt that that you had always tried so hard to be good but were overwhelmed by the fact that people, particularly your father, had treated you badly and abused you.
39 It was in that context, the bullying, the worsening of your Post-Traumatic Stress Disorder symptoms, the increasing deterioration of your mental state, that your substance abuse resumed or escalated. Professor Carroll noted it was likely that PTSD-related anxiety predisposed you to a relapse into substance misuse at that time. Whilst it is clear that self-induced intoxication is not a mitigating factor, the deterioration in your mental health and the link between that and substance abuse does provide a context for your offending. It is noteworthy that this is not a case of a person who does not suffer from any mental health conditions or psychiatric conditions such as you do, who makes a conscious choice to abuse substances, knowing of the disinhibiting effect that they have on them. I accept Mr Carr’s submission that the disadvantages which you have faced throughout your life bear upon your culpability and I accept the disadvantage, social isolation and paternal abuse that you endured in childhood and as an adolescent, form the setting in which you sought to self-medicate with illicit drugs. The fact that you were introduced to drugs by your father, when you were only an adolescent, again reduces the moral culpability that would otherwise flow from self-induced intoxication. Again, that means that your circumstances and the impact of self-induced intoxication distinguish you from adults who, without your disabilities, make conscious choices to abuse substances and cannot therefore call in aid any mitigation in relation to self-induced intoxication and its connection with the offending.
40 I accept that there is powerful evidence that this is out of character behaviour from a young man who suffers the burden, through no fault of his own, of a severe neurodevelopmental disorder and Post-Traumatic Stress Disorder. I accept too the evidence that you are a young man who on the consistent and unchallenged evidence before me is otherwise gentle, kind and of a generous nature.
41 Your behaviour on this day, the taking of the knife and the holding it to the entirely innocent and blameless Mr Dong is indeed totally out of character.
42 I also accept the evidence of your profound remorse and it is particularly noteworthy, not only given your youth but given your communication disorder, that you have been consistently reported by your family, your treating practitioners, Dr Carol and Dr Jackson, as directing those expressions of remorse towards the victim and your appreciation of the impact on him rather than looking at remorse directed towards the impact of this change on you. And that stands in stark contrast to many of the expressions of remorse that are heard by me in this court. It is clearly genuine and springs from your own sense of self-worth. It reflects what was said by your family members about your underlying good, gentle, kind nature.
43 That is not to diminish what must have been the impact on the victim. Although Mr Dong decided not to make a victim impact statement, it is clearly a terrifying ordeal to have somebody get into your car, produce a knife and direct you to get out of it. That there was no force other than that does not diminish the seriousness of the offending. That it was relatively fleeting for the victim does not diminish the seriousness of the offending. But there is an absence of aggravating features that often accompany this type of offence that I take into account also. That is also relevant to the expression of remorse and of the weighing of that against the sort of person you otherwise present as.
44 I take into account also the fact that you have pleaded guilty at the earliest possible opportunity and that you did so to a charge that carries with it a mandatory term of imprisonment. Your early plea, and its significance in facilitating the course of justice, as well as its significance in providing independent evidence of your remorse clearly carry great weight.
45 After you were charged, your mental health deteriorated even more and as I have already alluded to, you made a serious attempt on your life on New Year’s Day this year. As a result, you have suffered a hypoxic brain injury. Your memory in particular is affected and it is likely that you will suffer from those deficits for the rest of your life. You may, with assistance, develop some compensatory mechanisms but this is a lifelong sentence imposed on you as a result and you remain at serious risk of harm to yourself as Professor Carroll's report indicates.
46 Since your discharge from hospital following that attempt on your life, you were referred to and have remained under the treatment of a psychiatrist and an AOD counsellor. Their reports reveal that you have engaged well and positively with each of them and are committed to improving your mental health and following their advice in order to improve your mental health and reduce or, indeed, eliminate your substance abuse. Between January and March of this year you also engaged with a counsellor at SE CASA in relation to the paternal abuse you have suffered in the past, and for part of this year you also engaged with another psychologist. It is not clear on the material before me why your consultations with the CASA counsellor and the psychologist came to an end but Professor Carroll recommends that you recommence with each of them and you have indicated a preparedness to do so. I accept that the evidence overall shows that you have shown yourself committed to improving your mental health and to engaging fully and appropriately with mental health professionals. All of these matters not only count in your favour but indicate very powerfully that you are unlikely to offend again. I am satisfied therefore that specific deterrence does not need to carry significant weight in this sentence.
47 I accept also that in the circumstance, you are properly to be regarded as a youthful offender for whom encouraging rehabilitation carries more weight than it might for an adult offender.
48 You are a young 23 because of your communication disorder and the social isolation and naivety flowing from that, as was so powerfully documented by Professor Carroll. You have also, as the evidence reveals, made positive efforts to date to facilitate your rehabilitation. I am told that you have been entirely abstinent from drugs and alcohol since your self-harm attempt at the beginning of this year and that shows not only an openness to rehabilitation but a serious commitment to it and that therefore, in general terms, in accordance with authority, must be encouraged in the sentencing process.
49 Given those three distinct psychiatric conditions that I have referred to, I do not consider that general deterrence need be given disproportionate weight. Because of the sort of offence that aggravated carjacking is, clearly as your counsel acknowledges, deterrence must have weight and must be considered in the sentencing process. But you are not a person to be made an example of. And as I alluded to in the course of discussions both with Mr Carr and Mr Roper, there are some distinguishing features between what might be seen to be the general perception, at least, of the general run of carjacking cases and yours.
50 Finally I note with real concern the powerful evidence of Professor Carroll as to your current mental state and your now high-risk of serious suicide attempt. I have already, in accordance with his recommendations, provided his report to the prison authorities when I remanded you yesterday.
51 This combination of factors leads me to conclude that, bound as I am to impose a sentence of imprisonment, the proper application of sentencing principles, justice and mercy point to the imposition of a term of imprisonment which might, to those unfamiliar with your circumstances, appear to be disproportionately low. Any period of imprisonment is for you, in my view, a punishment disproportionate to the need to impose just punishment for the offending and to impose a sentence which properly reflects the purposes of punishment set out in s 5(1) of the Sentencing Act. I accept Mr Carr’s submission that a short term of imprisonment should be imposed and I note that the prosecution concedes that a short sentence is, in your unusual and remarkable circumstances, within range.
52 So far as Charges 2 and 3 are concerned, as I indicated in the course of discussion yesterday and subject to your assessment as being suitable, I intended to impose a community correction order. Given the relatively minor nature of those 2 charges, that is use of credit cards obtained in the course of the robbery of the car and for relatively small amounts of money, I am conscious of the need to ensure that the CCO is reflective of that wrongdoing and your circumstances and that it is not seen as a back door to imposing a combination sentence in respect to the aggravated carjacking. I am also of the view that the CCO conditions should be predominantly therapeutic or rehabilitative. I will, in accordance with the recommendation of Corrections, impose a component of supervision. That in itself has a punitive as well as a rehabilitative effect because you must be subject to supervision and do what you are directed to by an authorised officer of Corrections. I do not intend in your circumstances to impose any period of unpaid community work. Not only would it be disproportionate to the offending in respect to the two charges of obtain property by deception but, given your circumstances, I do not consider you a suitable candidate for unpaid community work within a community corrections setting. That therefore sets out my reasoning and I now proceed to sentence. Can you now please stand Mr Anderson?
53 Rowan Anderson, on the three charges to which you have pleaded guilty you are convicted.
54 On Charge 1, you are sentenced to imprisonment for a period of one month. I declare that you have spent two days of pre-sentence detention in respect of this charge and direct that that be counted, is that right?
55 MR CARR: Sorry, Your Honour, with the addition of yesterday, the proper declaration would be three, in my submission.
56 MR ROPER: I agree with that.
57 HER HONOUR: Thank you. Thank you. I declare that you have spent three days in pre-sentence detention and direct that that be counted and reckoned accordingly as part of the sentence.
58 On Charges 2 and 3 you are convicted and sentenced to be placed on a community correction order for a period of 6 months, commencing on your release from imprisonment.
59 In addition to the core conditions applicable to all community correction orders, it will have, as program conditions:
a) supervision;
b) treatment and rehabilitation in respect of drugs;
c) treatment and rehabilitation in respect of alcohol; and
d) treatment and rehabilitation in respect of mental health.
60
Before I take you through the community correction order itself, I also will make the orders requested in respect of the provision of a forensic sample and the forfeiture order. Let me just explain the forensic sample order to you.
Mr Anderson, I am directing that you undergo a forensic procedure to provide a forensic sample. That involves the taking of what is called a buccal sample, which involves the rubbing of a swab, like a cotton bud on the inside of your cheek. If you do not cooperate in the provision of that sample, the police are authorised to use reasonable force to obtain that sample and that means it is likely that they will take a blood sample rather than this less invasive method of you being allowed to rub the swab on the inside of your mouth yourself. Do you understand that?
61 OFFENDER: Yes.
62 HER HONOUR: So far as the community correction order is concerned, these - I am going to read it to you and read the conditions to you. I want you to understand that I cannot impose this community correction order on you unless you consent. And I understand that when you were assessed yesterday, the Corrections officer told you about that. Do you remember that?
63 OFFENDER: Yes, Your Honour.
64 HER HONOUR: And do you consent to being placed on a community corrections order?
65 OFFENDER: Yes, Your Honour.
66 HER HONOUR: All right, let me read the conditions to you. This is in respect to the two charges of obtain property by deception and it will last for six months commencing on the completion of your term of imprisonment. You must attend at the Frankston community correctional services, which is at ground floor, 431 Nepean Highway, Frankston, within two days after the order starts. So, that is within two days of your release from your sentence of imprisonment. You must not commit another offence for which you could be imprisoned during the time the order is in force.
67 You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations. That means that you must not be impaired by drugs or alcohol when you attend Corrections for any supervision appointment, for any other purpose that they require you to or for any of the counselling or drug or alcohol assessment or treatment appointments they make for you. And you must also submit to any drug or alcohol testing if they direct you to do so.
68 You must report to and receive visits from the Secretary or delegate. You must let a community correction officer know within two clear working days if you change your address, or if you get a job or change your job or lose your job. You must not leave Victoria without first getting permission to do so from the Secretary or delegate and you must obey all lawful instructions from and directions of the Secretary. They are the core terms that apply to all community corrections orders.
69 The ones that are special program conditions for you are these. You must be under the supervision of a community correction officer for a period of six months. You must undergo assessment and treatment including testing for drug abuse or dependency as directed by the regional manager. I anticipate that what you will be directed to do is to continue to see the AOD clinician you have been seeing to date. You must undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager. And, again, that is bound up in, I anticipate being, a direction to continue to see the AOD counsellor who you have been working so well with to date.
70 You must undergo any mental health assessment and treatment and that may include psychological and neuropsychological psychiatric treatment or treatment in a hospital or residential facility as directed by a regional manager. And, again, I anticipate that that will mean directing that you continue your visits with Dr McMillan, that you see the psychologist, Mr Hanley, who you had been seeing before, again and that you re-engage with SE CASA to see the counsellor there if they think that that is appropriate. Now, do you understand the effect and conditions of the CCO?
71 OFFENDER: Yes, Your Honour.
72 HER HONOUR: And do you consent to it being made?
73 OFFENDER: Yes, Your Honour.
74 HER HONOUR: I am going to ask Mr Carr and Ms Coath to bring that down to you, to show it to you and your mother and make sure that you understand it and then when you do, that you sign it and that will then be brought back to me. You can take a seat while that is happening. And I am noting on the order, custody management issues, risk of self-harm, suicide risk and vulnerability due to age and appearance and I declare pursuant to s 6AAA of the Sentencing Act that but for the plea of guilty and for s 10A of the Sentencing Act, I would have imposed a sentence of a 12-month community correction order for Charge 1.
75 Can that CCO be taken down now. I have countersigned that CCO. Mr Carr do you want me to provide a copy of that to you and your instructor rather than to your client in the circumstances?
76 MR CARR: Yes. My instructor's been given a copy, unsigned by Your Honour's associate.
77 HER HONOUR: Yes. Mr Anderson, a copy of the CCO has to be provided to your legal advisors. I am going to give it to your legal advisors and they will provide a copy to your mum no doubt and a copy will also go to Corrections but I will not give you that extra bit of paper to have to worry about. All right, no further orders?
78 MR CARR: No, Your Honour.
79 HER HONOUR: Mr Anderson, that then is the end of the sentencing hearing. Can you now please remove Mr Anderson.
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